I agree that we do not have jurisdiction either on the ground that title to real estate is involved or that the city is acting as a county. However, I do think we have jurisdiction on the ground that it is a case "involving the construction of the Constitution . . . of this state." (Sec. 3, Art. V, Const.) The motion to dismiss and the answer raised only one issue, the issue of public use. Both stated that the use for which the City sought to take the land was a private use and not a public use; the motion to dismiss stating that this appeared on the face of the petition. The Court sustained the motion to dismiss. I think this sufficiently raised a constitutional question and since it is the only question in the case it is inherently involved. [See Massey-Harris Harvester Co. v. Federal Reserve Bank,340 Mo. 1133, 104 S.W.2d 385.]
It is true that the motion, without specifying any provision of the Constitution, stated that "the attempted condemnation is for a private use as distinguished from a public use and is illegal and null and void under the applicable provisions of the Constitutions of the United States, State of Missouri and the Charter of the City of St. Louis." However, Sec. 28, Art. I of the Constitution provides: "That private property shall not be taken for private use with or without compensation, unless by consent of the owner . . . (except for ways of necessity, etc.) . . . and that when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public." I think the issue raised as to public use so clearly involves the construction of this provision of the Constitution that we should hold this constitutional question was sufficiently raised. [See City of St. Louis v. Friedman, (Mo. Sup.) 216 S.W.2d 475.]
I understand the principal opinion herein to concede that a constitutional question could have been raised in this case if it had been stated by defendant that taking its property would have violated Section 28 of Article I of the Constitution, because the City was taking it for a private use and if the City had thereafter stated that it was properly taking it for a public use under said section and article. Suppose that had been done. What law would have been applied to the decision of that question that will not be applied to it in any event by whatever court decides it? The only question in the case is whether the proposed use is a public use or a private use. No court could decide it on any other issue regardless of whether Section 28, Article I was specified or not.
Section 28, Article I, is a limitation on the power of the Legislature to authorize the taking of private property. There was no such provision in our original Constitution of 1820, but the same result was *Page 1236 reached without it on constitutional grounds. In Dickey v. Tennison, 27 Mo. 373, it was held that an act authorizing the taking of private property for private use was unconstitutional as hostile to the existence of private property, and contrary to the form of government established by the Constitution, without specifying any constitutional provision. However, "the courts have denied the right to take private property for private use on the ground that it would deprive the owner of his property without due process of law." [29 C.J.S. 819, § 29; 18 Am. Jur. 659, § 34.] It was also early held, under the provision of our 1875 Constitution against taking private property for private use (now Sec. 28, Art. I), that the question of whether or not any use is a public use is one of law to be determined by the court and is not an issue for submission to a jury. [City of Savannah v. Hancock, 91 Mo. 54.] Therefore, we have a question of law and not a fact issue. By what law is this question to be decided? Must it not be decided on the construction of the fundamental law established by the Constitution? That is either on the construction of Section 28, or, if we had no such provision, of[383] the due process clause. Thus it would seem that the question of public use has always been recognized as a constitutional question. When this is the only question in the case, I cannot see how any Court can decide it except by a construction of the terms "public use" and "private use" as used in the Constitution. If there ever can be a case, in which there is an inherent constitutional question, I think this is it.
In Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, it held that there is an inherent constitutional question only "where on the whole case some provision of the Constitution was either directly or by inexorable implication involved in the rendition of the judgment and decided against appellant." I would go further and say that it must be the sole question for decision in the case and that it must be possible, from the issues raised, to identify some provision of the Constitution which must be construed to decide the case. Under such conditions (and I think that is the situation herein) a constitutional question is raised by the issues presented for decision because the decision must depend upon a construction of a constitutional provision. I think the pleadings in the case raised a constitutional question inherently because the issue they presented could only be decided by construction of Sec. 28, Art. I of the Constitution.
Thus we have a case where the defendant relied upon a constitutional provision (and I think sufficiently identified it) and the Court decided the case on the sufficiency of the petition to state a claim for taking property as against the challenge in the motion to dismiss that it showed on its face only a private and not a public use; and the plaintiff, taking the negative side of this constitutional question, lost and appealed, seeking to have us hold that its petition did sufficiently show a public use. [See Dye v. School District, 355 Mo. 231, 195 *Page 1237 1237 S.W.2d 874.] I think this record shows that the trial court did decide the case against plaintiff on its construction of a constitutional provision and that plaintiff is entitled to invoke our jurisdiction on the ground that the only question involved is this constitutional question.